Charges Dropped in Earprint Case

March 23, 2001

VANCOUVER, Wash. (AP) - Prosecutors dropped their case against a murder suspect who was linked to the crime by an earprint found on a door at the scene of the crime. 

In documents filed Thursday in Clark County Superior Court, prosecutors said they did not have enough evidence to go to trial a third time against David Wayne Kunze, 50, of Vancouver. A second trial had ended in a mistrial last week. 

James W. McCann, the fiance of Kunze's ex-wife, was beaten to death in December 1994 and his 17-year-old son was severely injured. Investigators said Kunze entered McCann's home and paused to listen at the bedroom door before the attack, leaving a telltale earprint. 

Prosecutors had contended an earprint could be reliably used as evidence, like a fingerprint. Kunze was convicted in 1997 of aggravated first-degree murder, the second person nationwide to be convicted partly on the basis of earprint evidence, and was sentenced to life in prison without possibility of release. 

But a three-judge panel of the state Court of Appeals overturned the conviction in 1999, returning the case to the trial court with instructions that witnesses could assert only that the earprint did not rule out Kunze as the perpetrator, not that it was 100 percent reliable. 

The FBI does not use earprint identification, the judges noted. 

Other states also have rejected earprint evidence. 

During the second trial, a prosecutor mentioned the word ``appeal'' while testifying March 14 and Judge Robert L. Harris declared a mistrial. Harris had directed lawyers not to mention the previous trial or Kunze's successful appeal. 

The first conviction involving earprint evidence, in California, had more additional evidence than the Kunze case had. 

A new murder charge against Kunze could still be filed, but deputy prosecutor Thomas Duffy indicated that would not happen without new evidence. Defense lawyer, John Henry Browne said he would ask the state Supreme Court to rule out the possibility of bringing another murder charge. 

Kunze has been free on $500,000 bail since last August. He said he plans to return to school and hopes to be reunited with his children, whom he last saw nearly five years ago when they visited him in jail. 

``That's a horrible thing to stand there and have someone say you are guilty and you're going to prison the rest of your life,'' he said. ``We all think it can't happen to us.'' 

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